Environmental Law Commons^™

Shifting Paradigms Transform Environmental And Land Use Law: The Emergence Of The Law Of Sustainable Development, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Hard, Soft & Uncertain: The Guarani Aquifer And The Challenges Of Transboundary Groundwater, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This Article begins with an overview of the ecology of the Guarani Aquifer region before turning to the legal and ecological problems it faces. Because the majority of the Guarani Aquifer underlies Brazil (with the rest residing below Argentina, Paraguay, and Uruguay), the laws and policies of Brazil have a significant managerial impact. Consequently, the Brazilian legal regime forms the focus of the first Part of the Article. The Article then analyzes the international transboundary framework before turning to the recently enacted Agreement on the Guarani Aquifer. This Agreement, signed but not yet ratified by four countries, represents a major …

Land Use And Climate Change: Lawyers Negotiating Above Regulation, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use …

Dynamic Governance Innovation, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This article frames environmentally sound innovation in the context of transnational network theory with the goal of setting forth a preliminary framework for international legal policy coherence. I consider how network dynamics can facilitate broad diffusion of environmentally sound technologies, concluding that what appears to be fragmented trade, environment, and human rights regimes are indeed sustainable development building blocks with which to achieve dynamic governance. Collaborative environmentally sound innovation networking may be able to shepherd whole renewable energy sectors across the innovation valley of death and help turn a global responsibility to ramp up green technology into a global initiative …

The Importance Of Information And Participation Principles In Environmental Law In Brazil, David N. Cassuto, Romulo S.R. Sampaio

Elisabeth Haub School of Law Faculty Publications

This article explores the two different kinds of uncertainty, ‘hard’ uncertainty (unknown unknowns) and ‘soft’ uncertainty (known unknowns), in the context of environmental law decision making. First, the authors argue that these different categories should not be treated the same when facing decisions under uncertainty. To deal with these different uncertainties, a tiered risk analysis process is called for, using participatory techniques to turn hard uncertainty into (more manageable) soft uncertainty as well as to increase the legitimacy of environmental decision making, even in cases of hard uncertainty. This methodology can and should apply to all instances of domestic, transnational …

Challenges To China's Natural Resources Conservation And Biodiversity Legislation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Despite China's legislative attempts to conserve its natural resources and in turn protect biodiversity, Chinese law in many aspects remains ineffective in pursuit of these goals due to struggles with implementation, enforcement, and insufficient public participation, as well as legislative prioritization of economic values over ecological ones. This Article provides an overview of biodiversity and conservation legislation in China, and suggests that China can improve this legislation by increasing the public's role in conservation efforts, increasing liability and enforcement mechanisms, and improving administrative coordination.

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

Soaring energy demands and increasing technological innovation have led to the rapid exploitation of offshore oil and gas exploration and development. This Article seeks to examine elements of risk preparedness and corporate social responsibility in the context of the underwater natural gas pipeline in the Eastern Caribbean and the exploration of Florida's potential offshore energy reserves. I discuss these two case studies to illustrate the prevalence of emerging regional energy corridors in previously unfathomable tropical and subtropical locales known for tourism-intensive commercial activity. While images of environmental degradation of the 2010 BP oil spill remain entrenched in the collective consciousness, …

A "Blunt Withdrawal"? Bars On Citizen Suits For Toxic Site Cleanup, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Throughout the history of federal statutory environmental law, citizen suits have played a key role in enforcement. Through statutory interpretation, however, courts have narrowed the circumstances under which citizens can sue. This Article explores one such restraint: Courts have severely limited citizen suits under the Resource Conservation and Recovery Act (“RCRA”) by reading very broadly a jurisdiction-stripping provision of RCRA's companion statute, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). This Article argues that courts have read that provision too broadly, not only violating traditional principles for resolving inter-statutory conflict but also undermining the purposes of both statutes by …

Hydrofracking: State Preemption, Local Power, And Cooperative Governance, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Advocates for the gas drilling technology known as hydraulic fracturing, or fracking, argue that it will bring significant economic benefits to the private and public sectors. Its opponents dispute these claims and point to significant environmental and public health risks associated with fracking—risks that must be considered in adopting government regulations needed to protect the public interest. One of the many issues raised by fracking is which level of government should regulate which aspects of the practice. This debate is complicated by the fact that the risks associated with fracking raise concerns of federal, state, and local importance and fit …

Changes Spark Interest In Sustainable Urban Places: But How Do We Identify And Support Them?, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Changes in climatic and demographic trends are sparking renewed interest in cities generally and sustainable communities particularly. On the one hand, residents and workers in denser, mixed-use neighborhoods served by transit have half the carbon footprint of those in spread-out suburban areas. On the other hand, many of the smaller households that characterize the nation’s growing population prefer to live in precisely those compact, mixed-use neighborhoods. In New York, these changes align with several new state policies that encourage cities and towns to reduce carbon emissions, reduce vehicle travel, create sustainable buildings and neighborhoods, and preserve the landscapes that sequester …

Missouri Oil And Gas Update, Nadia B. Ahmad

Elisabeth Haub School of Law Faculty Publications

The State of Missouri has untapped potential for the development of oil and natural gas resources. While the Missouri courts were quiet this past year on interpreting oil and gas rules and regulations, the legislature was active in amending laws governing storage tanks. The state has experienced a tremendous upsurge in oil and gas production in the past two fiscal years. Missouri is poised to ramp up its conventional oil and gas production in the coming years, so increased legislative actions and court activity will likely occur in the near future. Missouri's energy resources include coal bed methane, oil sand, …

Environment, Ethics, And The Factory Farm, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Transcript of Symposium: Ethical Implications of the Commercial Use of Animals.

What are the ethics behind factory farming? What are the ethical implications? Specifically, I'd like to focus on the environmental implications. But I define environmental implications a little differently than a lot of folks because I teach animal law.

Recovering From The Recovery Narrative: On Glocalism, Green Jobs And Cyborg Civilization, Michael Burger

Sabin Center for Climate Change Law

In this Essay, I make a preliminary foray into new narrative terrain, identifying several emerging legal storylines that have arisen in the wake of climate change disruptions and that I predict will prove influential in the coming years. In Part I, I discuss the ways in which new perceptions of scale are re-defining human beings' attachments to a sense of "place" or "dwelling" and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes. In Part II, I discuss the ways in which America's long history of nationalizing nature manifests in the discourse surrounding …

Envisioning Resilient Electrical Infrastructure: A Policy Framework For Incorporating Future Climate Change Into Electricity Sector Planning, Sam C.A. Nierop

Sabin Center for Climate Change Law

Climate change needs to be incorporated in future designs of the electricity sector. This paper argues for a policy framework in which utilities take the lead by performing an electrical climate change impact assessment that evaluates to what extent utilities’ electrical assets are vulnerable to future climate change. Based on this assessment, electrical climate change adaptation plans should be formulated by the utility in cooperation with utility regulators, municipalities and supralocal governments. A collaborative process is essential, because adaptation measures need to be tailored to the regional circumstances and many types of adaptation measures require governmental approval. In order for …

Technology Transfer And Dissemination Under The Unfccc: Achievements And New Perspectives, Stéphanie Chuffart

Sabin Center for Climate Change Law

Response to climate change will critically depend on the cost, performance, and availability of technologies that can lower emissions, mitigate, and adapt to climate change. Technological innovation can furthermore lower the cost of achieving environmental objectives. However, data from the United Nations Framework Convention on Climate Change (UNFCCC) Subsidiary Body for Scientific and Technological Advice flag that although issues of technology transfer have been central to the UNFCCC since the negotiation of the Convention, there is still an urgent need for effective environmental technology diffusion. Building upon lessons learned from technology transfer activities under the Clean Development Mechanism and the …

Legal Issues In Integrated, Multi-Pollutant Planning For Energy And Air Quality, Shawna Ganley, Shelley Welton

Sabin Center for Climate Change Law

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in …

Managed Coastal Retreat: A Legal Handbook On Shifting Development Away From Vulnerable Areas, Anne Siders

Sabin Center for Climate Change Law

Numerous legal tools already exist to assist federal, state, and local governments in conducting managed retreat away from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. These tools have, with little fanfare, been used by communities around the United States to implement managed retreat. This Handbook collects examples, case studies, and lessons learned from some of these early innovators in the hope that their lessons can inform future efforts to limit the exposure of our communities to coastal threats. The key legal issues raised by these examples are also …

Responsible Shale Gas Productions: Moral Outrage Vs. Cool Analysis, David B. Spence

Fordham Environmental Law Review

The relatively sudden boom in shale gas production in the United States using hydraulic fracturing has provoked increasingly intense political conflict. The debate over fracking and shale gas production has become polarized very quickly, in part because of the size of the economic and environmental stakes. This polarized debate fits a familiar template in American environmental law, pitting “cool analysis” against “moral outrage.” Opponents of fracking have generally framed their arguments in moral or ethical terms, while systematic research is beginning to build a more careful and nuanced understanding of the risks associated with shale gas production (though the record …

Fracking Patents: The Emergence Of Patents As Information-Containment Tools In Shale Drilling, Daniel R. Cahoy, Joel Gehman, Zhen Lei

Michigan Telecommunications & Technology Law Review

The advantages of new sources of energy must be weighed against environmental, health, and safety concerns related to new production technology. The rapid development of unconventional oil and gas fields, such as the Barnett and Marcellus Shales, provide an excellent context for these contrasting goals. Information about extraction hazards is an extremely important issue. In general, patents are viewed as a positive force in this regard, providing a vehicle for disseminating information in exchange for a limited property right over an invention. However, by limiting the evaluation of an invention by third parties, patents might also be used to control …

New Priorities As The Endangered Species Act Turns 40, Dale Goble

Articles

No abstract provided.

Frameworks For Amending Reservoir Water Management, Ethan Mower, Leandro E. Miranda

Publications

Managing water storage and withdrawals in many reservoirs requires establishing seasonal targets for water levels (i.e., rule curves) that are influenced by regional precipitation and diverse water demands. Rule curves are established as an attempt to balance various water needs such as flood control, irrigation, and environmental benefits such as fish and wildlife management. The processes and challenges associated with amending rule curves to balance multiuse needs are complicated and mostly unfamiliar to non-US Army Corps of Engineers (USACE) natural resource managers and to the public. To inform natural resource managers and the public we describe the policies and process …

Winter 2013 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Comments: The Hidden Cost Of Rod And Rifle: Why State Fish And Game Laws Must Be Amended In Order To Protect Against Unreasonable Search And Seizure In The Great Outdoors, Bryan M. Mull

University of Baltimore Law Review

No abstract provided.

Energy And Environmental Law, Joel B. Eisen

Law Faculty Publications

This chapter covers energy law, which focuses on the production, distribution, conservation, and development of energy resources. State and federal energy laws and regulations are designed to keep prices to consumers down (particularly in certain energy industries which state and federal governments monitor to keep markets as competitive as possible) and to address economic, environmental, and national security issues.

Environmental Justice As An Essential Tool In Environmental Review Statutes: A New Look At Federal Policies And Civil Rights Protections And California’S Recent Initiatives, Alan Ramo

UC Law Environmental Journal

No abstract provided.

Bear Gultch, Pinnacles National Monument, Ashley Nance

UC Law Environmental Journal

No abstract provided.

The Intersection Between Urban Agriculture And Form-Based Zoning: A Return To Traditional Planning Techniques, Joshua Yellin

UC Law Environmental Journal

No abstract provided.

Oil Companies And Their Branded Dealers’ Contaminated Gas Stations: The Case For Arranger Liability Under Washington’S And Alaska’S Environmental Cost Recovery Statutes, Sharman Braff

UC Law Environmental Journal

No abstract provided.

Chipmunks At Crater Lake, Oregon, Mark Bland

UC Law Environmental Journal

No abstract provided.

Adaptive Co-Management Thresholds: Understanding Protected Areas Policy As Normative Conflict, Johnathan Liljeblad

UC Law Environmental Journal

No abstract provided.